Reginald Mimms v. UNICOR , 386 F. App'x 32 ( 2010 )

DLD-242 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1809
___________
REGINALD MIMMS,
Appellant
v.
U.N.I.C.O.R., A Government Corporation; J. EOBSTEL,
Factory Manager in his Official and Personal Capacity; MR. ELIAS, Employee,
A.D.P. in his Official and Personal Capacity; MR. MISHIKA, Employee,
IPS, in his Official and Personal Capacity; MEYERS, Employee, Supervisor in his
Official and Personal Capacity; LAWHORN, Employee, Associate Warden, in his
Official and Personal Capacity; C. FISHER, Employee, in his Official and Personal
Capacity; G. PATRAW, Employee in his Official and Personal Capacity; FRITZ,
Employee, in his Official and Personal Capacity; DOES 1-10
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 09-cv-01284)
District Judge: Honorable Jerome B. Simandle
_______________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 9, 2010
Before: FUENTES, JORDAN AND HARDIMAN, Circuit Judges
(Opinion Filed: July 13, 2010)
_________
OPINION
_________
PER CURIAM
Reginald Mimms, a federal prisoner presently confined in the Metropolitan
Detention Center in Brooklyn, New York, appeals pro se from the District Court’s orders
dismissing his first and second amended complaints. Because we conclude that this
appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R.
27.4; I.O.P. 10.6
I.
Mimms instituted this action in the District Court in March 2009. After filing two
more documents titled “amended complaint” and “complaint,” Mimms filed an amended
civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), in the District Court against J. Eobstel and
other prison officials, UNICOR 1 , the Bureau of Prisons (“B.O.P.”), and unspecified
“DOES 1-10” (“first amended complaint”). He claimed that the defendants harassed him,
retaliated against him for filing grievances, filed false reports against him, were
deliberately indifferent to his medical needs, and failed to protect him from a risk of
serious harm. The claims stem from allegations relating to his employment with
UNICOR and his transfer from Lewisburg to Fort Dix prison. He claimed that, in 2007,
certain UNICOR officials refused to promote him to a higher position and eventually
terminated his employment in 2008. In June of 2008, Mimms was transferred to Fort Dix.
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Mimms refers to UNICOR as a B.O.P. “factory.”
2
Upon his arrival, he filed grievances with Fort Dix officials challenging the denial of
medical care while he had been housed at Lewisburg. He claimed staff attempted to deter
him from filing the grievances and retaliated against him after he pursued them.
On January 29, 2010, the District Court reviewed the first amended complaint
pursuant to 28 U.S.C. § 1915A. It dismissed with prejudice the claims against “DOES 1-
10,” as well as his claims relating to the defendants’ refusal to promote him and his
eventual termination, his transfer to Fort Dix, and unspecified threats and harassment.
The District Court also dismissed his allegations regarding the defendants’ failure to
protect him from harm and their violation of his rights under the Equal Protection Clause.
The District Court dismissed without prejudice his claims relating to the refusal to treat
his medical needs. The court also dismissed his retaliation claim and his various state law
claims without prejudice.
Mimms filed a second amended complaint in February 2010, repeating his already-
dismissed claims regarding his UNICOR employment. He also restated his claim
regarding insufficient medical care. This time, however, he stated that he broke his left
hand at Lewisburg camp. He was given an x-ray and was treated with a splint and
medication for pain. He stated that he continued to experience pain and numbness and
did not have any follow-up treatment. The District Court rejected this claim. Finding that
allowing Mimms to amend his complaint would be futile, on March 8, 2010, the District
Court dismissed the second amended complaint with prejudice. The court denied his
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motion for the appointment of counsel as moot. Mimms filed a timely appeal.
II.
We exercise plenary review over the District Court’s sua sponte dismissal of
Mimm’s claims under sections 1915(e)(2)(B) and 1915A(b)(1). See Allah v. Seiverling,
229 F.3d 220, 223 (3d Cir. 2000). Because this appeal presents no “substantial question,”
we will summarily affirm the District Court’s order. 3d Cir. LAR 27.4 & I.O.P. 10.6.
III.
A. January 29, 2010 Order
The District Court properly dismissed the claims against “DOES 1-10” with
prejudice, as Mimms simply failed to state any allegation against them. See Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). The court was also correct that prisoners do not have
constitutionally protected interests in retaining employment, see James v. Quinlan, 866
F.2d 627, 630 (3d Cir. 1989), and so properly dismissed with prejudice his claims relating
to the defendants’ refusal to promote him and his eventual termination. Likewise,
Mimms’ claims relating to his transfer to Fort Dix were properly dismissed, as inmates
have no liberty interest in a particular place of confinement. See Olim v. Wakinekona,
461 U.S. 238, 245-46 (1983). Finally, the District Court correctly concluded that
Mimms’ claim regarding the defendants’ alleged verbal abuse and harassment of him was
not viable under 42 U.S.C. § 1983. Verbal harassment of a prisoner, without more, does
not violate the Eighth Amendment. See, e.g., McBride v. Deer, 240 F.3d 1287, 1291 n.3
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(10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). The District Court
also properly dismissed his conclusory allegations regarding the defendants’ failure to
protect him from harm, as none of his allegations present a situation where his health or
life were at risk, see Farmer v. Brennan, 511 U.S. 825, 832-38 (1994), and his claim that
his Equal Protection rights were violated, which is based only on his unsupported
conclusion that the defendants acted against him on the basis of his race.
The District Court properly dismissed without prejudice Mimms’ claims relating to
the refusal to treat his medical needs. Mimms did not allege that any of named
defendants were personally involved in the denial of any care. Moreover, he failed to
state with any specificity what his serious medical needs were, what treatment he
requested and was denied, and the time frame of the events. The District Court also
dismissed his retaliation claim without prejudice. According to Mimms’ statement of
facts, the defendants’ alleged retaliatory action (filing a false report against him) took
place before he filed his grievances against certain defendants.
B. March 8, 2010 Order
In his second amended complaint, Mimms restated his deliberate indifference
claim regarding insufficient medical care. In order to state a claim under the Eighth
Amendment for denial of medical care, Mimms must show that defendants were
deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104
(1976); Farmer, 511 U.S. at 834-35. Deliberate indifference can be shown by a prison
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official “intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05. Mimms
stated that he broke his left hand at Lewisburg camp. He was given an x-ray and was
treated with a splint and medication for pain. He stated that he continued to experience
pain and numbness and did not have any follow-up treatment. The District Court
properly dismissed this claim because Mimms failed to clarify which defendant he faults
for these events. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Furthermore, he did not satisfy the standard for deliberate indifference. According to
Mimms’ own allegations, he received immediate medical care, and he did not specify
what treatment, if any, he was denied. Although he claimed that he experienced
continuing pain, the District Court properly noted that he did not allege that the pain was
severe or that he informed prison officials about the pain and was denied treatment.
Mimms also appears to reassert his claim that defendants retaliated against him for
filing grievances and for racially motivated reasons. He stated that certain defendants
filed false reports against him for a variety of misconduct. The filing of false disciplinary
charges does not constitute a claim under § 1983 so long as the inmate was granted a
hearing and an opportunity to rebut the charges. Smith v. Mensinger, 293 F.3d 641, 653-
54 (3d Cir. 2002); see also Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986).
Here, Mimms does not allege that he was denied a hearing or an opportunity to present a
defense. Therefore, to the extent he asserted a due process violation, the District Court
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properly dismissed his claim.
Finally, Mimms repeated his already-dismissed claims regarding his UNICOR
employment and verbal harassment by prison officials. As discussed above, the District
Court properly dismissed these claims with prejudice in its January 29, 2010 order.
We see no error in the District Court’s conclusion that allowing Mimms to amend
his complaint yet again would be futile. To the extent Mimms challenges the District
Court’s denial of his motion for counsel, we conclude that the District Court did not
abuse its discretion. An indigent plaintiff seeking the appointment of counsel must
present a claim having “some merit in fact and law.” Parham v. Johnson, 126 F.3d 454,
457 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). Mimms’ claims
lack merit for the reasons already discussed.
For the foregoing reasons, we conclude that this appeal presents no substantial
question. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s
judgment.
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